The Copyright Amendment Bill 2025 (the Bill) seeks to amend the Copyright Act 1968 to address key issues identified during Ministerial Copyright Roundtables in 2023. These issues include the use of 'orphan works' and the application of copyright exceptions to remote learning environments.
Orphan Works Scheme: The Bill introduces a scheme to facilitate the legal use of 'orphan works', which are copyrighted materials whose owners cannot be identified or located to grant permission for use. The scheme limits the remedies available for infringing uses of such works, provided certain conditions are met. These conditions include:
Remote Learning Amendments: The Bill amends section 28 of the Act to clarify that the copyright exception relating to the performance and communication of copyright material in educational instruction applies equally to online and hybrid classroom settings. It also clarifies that parents, guardians, and other persons (not necessarily teachers) can assist students or provide educational instruction without affecting how the use of the material is treated under the Act, provided other relevant conditions are met. These amendments aim to address ambiguities and align the Act with modern teaching practices, especially in light of the shift to online learning accelerated by COVID-19.
Other Minor Measures: Schedule 3 of the Bill includes several minor and technical amendments, such as simplifying the processes for appointing an acting President and Registrar of the Copyright Tribunal of Australia, updating references to Commonwealth and State archives offices, modernizing the mode of notification required under the Act (from 'the Gazette' to 'notifiable instrument'), and clarifying provisions related to the duration of Crown copyright.
The Copyright Amendment Bill 2025 significantly advances public access to cultural and educational material, aligning with the principles of intellectualism and pro-democracy. By establishing an 'orphan works' scheme, the Bill unlocks a vast collection of cultural, historical, and educational works that were previously inaccessible due to unknown or unlocatable copyright owners. This directly benefits researchers, educators, students, and the wider Australian community, fostering an informed and engaged democratic discourse through greater access to knowledge.
The scheme provides legal certainty for good-faith users of orphan works, stipulating clear conditions for use, including diligent searches and record-keeping. This clarity is essential for cultural and educational institutions to confidently utilise valuable materials without undue legal risk. While protecting users, the Bill also includes mechanisms for copyright owners to receive reasonable payment if they are later identified, striking a fair balance between user access and creator rights.
Furthermore, the amendments clarifying copyright exceptions for remote and hybrid learning environments are crucial for modern education. These changes ensure that the performance and communication of copyrighted material in online classes, or with the assistance of parents and other community members, falls within existing exceptions. This promotes equitable access to education, particularly for students in remote areas, with disabilities, or facing other barriers, thereby upholding the normative base of non-discrimination and supporting a robust intellectual environment. Stakeholders across the education and copyright sectors, including the Copyright Agency, National Catholic Education Commission, Independent Schools Australia, and the Australian Society of Authors, have expressed support for these reforms, recognising their positive impact on access to knowledge and educational delivery.
While the Copyright Amendment Bill 2025 aims to balance rights, there are arguments that the orphan works scheme may not adequately protect the property rights of copyright owners. The limitation of remedies for infringing uses, even with provisions for 'reasonable payment', could be seen as weakening the fundamental rights of creators to control and profit from their intellectual property. Although a 'reasonably diligent search' is required, the subjective nature of this standard could lead to disputes and potentially undervalue the original work if an owner later comes forward. [Explanatory Memorandum page 10]
From a pragmatic (Value-Neutral / Epistemic Objection) perspective, the administrative burden of complying with the 'diligent search' and 'record-keeping' requirements could still be significant, particularly for smaller users or institutions. This might deter some from utilising the scheme, effectively limiting the intended increase in access to orphan works. Furthermore, the determination of 'reasonable payment' could be complex and contentious, potentially leading to further legal challenges and costs, rather than simplifying the process. [Explanatory Memorandum page 10]
Regarding the remote learning amendments, a notable limitation is that the Bill explicitly states it is not intended to cover delayed streaming of previously recorded educational instruction. [Explanatory Memorandum page 22] In an increasingly flexible and asynchronous educational landscape, this exclusion could be seen as a missed opportunity to fully modernise copyright law to support all forms of remote learning, potentially hindering innovation in educational delivery. [Judgment]
2025-11-05
House of Representatives
Before Senate
Unspecified
Attorney-General
Education, Science / Technology, Democratic Institutions